by Robert M. Sondak
On February 1988, the Florida Supreme Court began issuing advisory opinions as to whether non-lawyer conduct constitutes the unlicensed practice of law (UPL). After 10 years of UPL advisory opinions, certain trends in the law have crystallized. The Florida Supreme Court has in several instances restated and amplified on existing law, and in other instances has created a new body of law to meet the needs of the public. New issues, with even more long term impact on the practice of law, remain to be decided. This article examines those opinions and other activities which have grown out of the court’s 10 years of advisory opinions.
The court’s purpose for agreeing to issue UPL advisory opinions was to offer nonlawyers the opportunity to learn, in advance of UPL enforcement proceedings, whether their proposed conduct was consistent with the prohibition on the unauthorized practice of law. Since unauthorized practice is a criminal misdemeanor, F.S. §454.23, and is also punishable by the Florida Supreme Court as indirect criminal contempt, Rule 10-7.2 of the Rules Regulating The Florida Bar, the availability of a procedure to learn, in advance, whether prospective conduct is prohibited has obvious benefits for nonlawyers.
The advisory opinion procedure has, however, developed far differently from its original intent. The opinions issued by the Florida Supreme Court have addressed existing rather than proposed conduct. The court’s opinions have faced fundamental issues relating to the separation of powers, the role of professionals with expertise in law related fields, and the promotion of access to the legal system. In the course of answering requests for advisory opinions, the court has begun to restate and redefine the prohibition on unauthorized practice of law, thereby raising new questions for both lawyers and nonlawyers.
Normally, courts are prohibited from issuing advisory opinions, and are limited to cases and controversies. Martinez v. Scanlon, 582 So. 2d 1167, 1170–71 (Fla. 1991). The Florida Constitution contains an exception to this rule, permitting the court to answer requests for advisory opinions by the Governor. Fla. Const. Art. IV, §1(c). The court also has the inherent power to answer requests for advisory opinions by agencies which act on its behalf. See The Florida Bar Re: Advisory Opinion Concerning Applicability of Chapter 119, Florida Statutes, 398 So. 2d 446, 447 (Fla. 1981). None of these exceptions, however, gave the public a method of requesting an advisory opinion on prospective conduct.
In the 1960s, the Standing Committee on Unauthorized Practice of Law of The Florida Bar (the “standing committee on UPL”) began issuing informal advisory opinions. Committees in several other states also were issuing advisory opinions, all without direct participation by the courts of those states.
In Surety Title Insurance Agency, Inc. v. Virginia State Bar, 431 F. Supp. 298 (E.D. Va. 1977), vacated and remanded with instructions, 571 F.2d 205 (4th Cir. 1978), a U.S. district court found that the Virginia State Bar’s practice of issuing unauthorized practice of law opinions, when coupled with the threat of disciplinary proceedings, violated the federal antitrust laws. The district court opinion was vacated by the Fourth Circuit on procedural grounds, after which the case was settled. Therefore, there was no final judicial resolution of the antitrust issue. In view of the potential antitrust exposure, state bar associations, including The Florida Bar, ceased issuing advisory opinions.
In 1984, the U.S. Supreme Court decided Hoover v. Ronwin, 466 U.S. 558 (1984), which held that actions of the Arizona Committee on Examinations and Admission was exempt from antitrust challenge because they were “state action” of the judicial branch of government. Thereafter, the American Bar Association issued proposed rules for courts wishing to issue advisory opinions. The basic concept of the ABA rule was that if advisory opinions were an affirmative command of the judicial branch and the opinions were issued by the court rather than the bar, then the advisory opinions would be exempt from the antitrust laws under the “state action” doctrine as set forth in Hoover. The Florida Supreme Court adopted procedures for issuing advisory opinions on the unlicensed practice of law in July 1986. The Florida Bar Re: Rules Regulating The Florida Bar, 494 So. 2d 977, 1115–16 (Fla. 1986).
Advisory opinions are especially needed because there are few bright line rules explaining what conduct constitutes the practice of law. See The Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1191–92 (Fla. 1978) (“any attempt to formulate a lasting, all encompassing definition of the ‘practice of law’ is doomed to failure”). Moreover, in the wake of the Rosemary Furman controversy, The Florida Bar v. Furman, 376 So. 2d 378 (Fla. 1979), and The Florida Bar v. Furman, 451 So. 2d 808 (Fla. 1984), the leadership of The Florida Bar believed that changes in UPL enforcement were essential. See, e.g., the President’s Page of the January 1985 Florida Bar Journal, in which Gerald F. Richman suggested that the Bar leave the field of UPL enforcement to the state attorney.
The advisory opinion rule was only one of several changes in UPL enforcement during this era. In 1986, the UPL rules were changed to provide that The Florida Bar could seek civil injunction enforcement only, leaving to the state attorneys’ offices all criminal enforcement of UPL restrictions. The Florida Re: Rules Regulating The Florida Bar, 494 So. 2d 977, 1111 (Fla. 1986). It was hoped that this approach to UPL enforcement would reduce the amount of controversy the Bar’s UPL program would generate. In 1996, the court readopted rules authorizing indirect criminal contempt proceedings. In re: Amendment to Rules Regulating The Florida Bar, 627 So. 2d 272, 296–98 (Fla. 1996).
A more far-reaching change occurred in 1987, when the Florida Supreme Court adopted an amendment to the definition of the practice of law in Ch. 10 of the Rules Regulating The Florida Bar, The Florida Bar Re: Amendments to Rules Regulating The Florida Bar (Chapter 10), 510 So. 2d 596, 597 (Fla. 1987). The amendment permitted “nonlawyers to engage in limited oral communications to assist individuals in the completion of legal forms approved by the Supreme Court of Florida.” The purpose of this amendment was to address the criticism of the rule in The Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1194 (Fla. 1978), that nonlawyers may sell legal forms and type the forms, copying the information given to them in writing by their customers, but may not engage in any oral communication concerning the forms. Consequently, at least insofar as forms which are approved by the Florida Supreme Court, form sellers now may point out errors in the information customers write on the forms, thereby simplifying and streamlining the process.
Advisory Opinion Process
The procedures for issuing advisory opinions require a written request seeking an advisory opinion concerning activities which may constitute the unlicensed practice of law, stating in detail all operative facts upon which the request for opinion is based. Rule 10-9.1(b), Rules Regulating The Florida Bar. The Standing Committee on UPL is required to publish a notice in The Florida Bar News and in a newspaper in the Florida county in which the meeting will be held, giving the date, time, and place of the next standing committee meeting, stating the question presented and inviting written comments. At the meeting, “any person affected shall be entitled to present oral testimony and be represented by counsel. Oral testimony by other persons may be allowed by the committee at its discretion.” Rule 10-9.1(f)(1).
After the meeting, the committee must decide either to issue a written proposed advisory opinion or send a letter declining to issue an opinion. If the committee concludes that the conduct in question is not the unlicensed practice of law, the committee may issue an “informal” advisory opinion to that effect. Rule 10-9.1(g)(1). All other proposed advisory opinions must be filed with the Florida Supreme Court together with the record. The party requesting the opinion is given notice of its filing together with a copy of the opinion. Rule 10-9.1(g)(2). The committee must publish a summary of the proposed advisory opinion in The Florida Bar News. Rule 10-9.1(f)(3).
Anyone may, within 30 days, file a brief objecting to the opinion. The committee may file its responsive brief and reply briefs then could be filed. The Supreme Court may allow oral argument. Rule 10-9.1(g)(3). Thereafter, the court may “approve, modify, or disapprove the advisory opinion, and the ensuing opinion shall have the force and effect of an order of this court and be published accordingly.” Rule 10-9.1(g)(4).
The first request for an advisory opinion under the new rule came from an unusual source, the Florida Department of Health and Rehabilitative Services (HRS), which requested a formal advisory opinion as to whether its nonlawyer counselors (social workers) could prepare and file pleadings and appear in court on behalf of HRS in uncontested dependency court cases. After holding two public hearings, the Standing Committee on UPL issued a proposed advisory opinion concluding that HRS counselors were engaged in the unlicensed practice of law. HRS objected to the opinion, briefs were filed, and on October 12, 1987, the court heard oral argument.
The issues raised by the HRS request were far from routine. F.S. Ch. 39 appeared to authorize HRS employees to perform all of these functions. The Supreme Court was faced with questions of separation of powers both as to the legislative power to authorize the practice of law in dependency cases, and the judiciary’s power to enjoin an agency of the executive branch from appearing in court without legal representation. Moreover, any requirement that HRS appear only through counsel in the many thousands of its dependency cases would require the legislature to appropriate millions of dollars to pay HRS to hire and train lawyers.
The court’s initial opinion, The Florida Bar Re: Advisory Opinion HRS Nonlawyer Counselor, 518 So. 2d 1270 (Fla. 1988), found that HRS counselors were engaged in the practice of law by drafting pleadings and legally binding agreements and representing the state in dependency court proceedings. HRS Nonlawyer Counselor, 518 So. 2d at 1271–72. The court rejected HRS’s argument that as an arm of the executive branch, it could ignore the normal UPL rules, holding that “we know of nothing which permits state agencies to be represented in the Florida courts by nonlawyers.” Id. at 1272. The court then invalidated the provisions of Ch. 39, which purported to authorize nonlawyer practice of law in dependency proceedings: “The HRS activities at issue in this cause occur in judicial rather than administrative proceedings. Chapter 39 is invalid to the extent that it authorizes HRS lay counselors to practice law in the courts of this state.” Id.
The court, however, refused to take the final step of enjoining HRS from continuing its practice in light of two arguments made by HRS: “HRS asks that we authorize the lay counselor’s present activities, arguing that requiring licensed legal representation will not necessarily improve the system. HRS further points out that there is no assurance of legislative funding for such representation.” Id.
The court responded to those arguments cautiously: “While we agree with the Committee that HRS lay counselors are engaged in the practice of law, we are not convinced that such practice is the cause of the alleged harm, or that enjoining this practice is the most effective solution to this complex problem.” Id.
d the problem with an innovative approach: “The parties have raised legitimate and pressing concerns which are worthy of further study. The Chief Justice shall appoint an ad hoc committee to study the problem and make recommendations to this Court.” Id.
By deferring and remanding for further study, the court plainly hoped to defuse any controversy with the legislature by having the ad hoc committee form a consensus which the court could then adopt.
The ad hoc committee did precisely that. The committee consisted of representatives from the judiciary, The Florida Bar, HRS, the state attorney’s office, Children’s Home Society, Guardian Ad Litem Program, the medical community, and Legal Services of Greater Miami. The committee submitted its unanimous report to the Florida Supreme Court on February 1, 1989.
After receiving the report, and a response by HRS (which initially agreed with the report, but then changed its mind), the Florida Supreme Court issued it second opinion, The Florida Bar Re: Advisory Opinion HRS Nonlawyer Counselor, 547 So. 2d 909 (Fla. 1989). The key recommendation of the report was that “current HRS practice fails to provide competent, responsible representation.” HRS Nonlawyer Counselor, 547 So. 2d at 911. In spite of this, HRS urged the court to allow it to implement its own plan for increasing lawyer supervision over lay counselors, at a cost of $3.5 million per year, rather than requiring full in-court legal representation in uncontested cases, which it estimated would cost $4.5 million per year. The court rejected that approach, holding that: “Though the Department’s plan purportedly would save money, it would in effect result in a continuation of the current
Accordingly, the court ruled that “effective January 1, 1990, HRS must end the practice of law by its lay counselors under these statutes.” Id.
The two HRS opinions issued by the Florida Supreme Court were remarkable for several reasons. First, the question addressed by the court was not a hypothetical request by HRS for a ruling as to whether it might in the future begin utilizing nonlawyer counselors in dependency cases. Rather, the existing HRS practice was the result of express legislative authorization, and HRS merely sought to continue the practice.
Second, other than HRS itself, an answer to the request for an advisory opinion would be unlikely to have any impact on proposed conduct by other nonlawyers; nor was the underlying issue—whether a nonlawyer could prepare pleadings and appear in court to represent another—an uncertain legal issue. As the court’s initial opinion noted: “We have found that these types of activities constitute the practice of law in other areas ranging from domestic relations law to tenant eviction proceedings.” HRS Nonlawyer Counselor, 518 So. 2d at 1271. (Citations omitted.)
Third, this request for an advisory opinion placed the court in the middle of difficult separation of powers issues and potentially divisive political constituencies. The success of the opinion is reflected in the fact that after the court issued its second opinion, the legislature appropriated funds for HRS to hire lawyers, and, for the next 10 years, HRS has abided by the injunction. The court’s ruling on the separation of powers issues has not been challenged in later litigation.
Several of the requests for advisory opinions addressed by the court in the past 10 years have dealt with the fact that nonlawyers can, and often do, have expertise in law related fields which make them competent to perform certain tasks which are considered the practice of law. This issue did not come up in the HRS Nonlawyer Counselor case because the HRS counselors admittedly had no law related training or expertise.
In The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980), the Florida Supreme Court stated that the “single most important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.” The Moses observation has led to arguments by nonlawyers that the UPL rules do not take into account incompetent, unethical, and irresponsible lawyers who inflict harm on the public, and that professionals in other fields have sufficient competence, ethics, and responsibility to represent the public in law related fields.
At the time the advisory opinion rule was adopted, the existing UPL case law treated all nonlawyers the same, regardless of their education, experience, and expertise in law related fields. One of the most significant features of the court’s advisory opinion rulings has been that the court has begun to take that expertise into consideration.
The first such opinion, The Florida Bar Re: Advisory Opinion Nonlawyer Preparation of Notice to Owner and Notice to Contractor, 544 So. 2d 1013 (Fla. 1989) (“Notice to Owner”) addressed the common practice of “notice to owner services” preparing and serving notices to owner and notices to contractor. Notice to Owner, 544 So. 2d at 1014. The court recognized that:
[T]he construction industry, which is served by those who fill out the forms, is aware of their significance and generally knowledgeable of the requirements pertaining to the perfection of mechanics lien rights. The two forms in question are statutory forms requiring only a minimum of information which may be easily obtained from the customer or the public records.
Notice to Owner, 544 So. 2d at 1016.
The court also noted that there was no showing “that the public is being harmed by the preparation of these forms by nonlawyers.” Id.
In concluding that the current practice was not the unlicensed practice of law, the court relied on the observation from its decision in The Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1191–92 (Fla. 1978), that a definition of the practice of law “must necessarily change with the ever changing business and social order.” The court’s ruling appeared to create a new exception to the Brumbaugh rule. In 1987, the court had authorized oral communications between nonlawyers and customers concerning the completion of Supreme Court approved forms. Rule 10-2.1(a), Rules Regulating The Florida Bar. However, the notice to owner and notice to contractor forms were not approved by the Supreme Court. The Standing Committee on UPL suggested that the court adopt the notice to owner and notice to contractor forms as Florida Supreme Court approved forms, thereby remaining consistent with existing law. The court rejected that suggestion, Notice to Owner, 544 So. 2d at 1016–17, and chose instead to relax the Brumbaugh prohibition on nonlawyers’ oral communication with customers concerning forms they prepare, in a setting in which the court was convinced that both the nonlawyers and their customers knew what they were doing.
The notice to owner and notice to contractor forms were standardized statutory forms, with which the construction industry had extensive experience and familiarity. A far more difficult and challenging question arose when the court was faced with complex, nonstandardized legal documents having serious consequences both to customers and to others. The Florida Bar Re: Advisory Opinion Nonlawyer Preparation of Pension Plans, 571 So. 2d 430 (Fla. 1990) (“Pension Plans”), and The Florida Bar Re: Advisory Opinion Nonlawyer Preparation of Living Trusts, 613 So. 2d 426 (Fla. 1992) (“Living Trusts”).
Pensions plans typically are prepared by an employer, but the plan also affects the rights of employees who participate in the plan. Living trusts, like wills, affect the rights not only of the settlor of the trust, but also the trust’s beneficiaries. A complex body of federal law known as ERISA, 29 U.S.C. §§1001 et seq., governs pension plan practice, while extensive Florida statutory and case law addresses the multiple issues involved in a living trust’s disposition of property at death.
The Florida Supreme Court declined to approve the Standing Committee on UPL’s proposed opinion which would have severely limited the role of nonlawyers in pension plan preparation and administration. The court’s Pension Plan opinion acknowledged that CPAs, actuaries, and insurance underwriters “would be substantially affected” by a rule which directed that only licensed attorneys may draft critical documents, and provide legal advice and services regarding pension plans. Pension Plan, 571 So. 2d at 432. Moreover, the court recognized “that pension plan preparation and administration is a field of practice that requires the knowledge and expertise of lawyers, CPAs, actuaries, and life insurance professionals.” Pension Plan, 571 So. 2d at 433. The court ultimately concluded that “this record does not justify our approving a definitive opinion concerning this subject at this time.” Pension Plan, 571 So. 2d at 433.
The court was influenced by two significant factors. First, IRS regulations expressly permit CPAs and enrolled actuaries to practice before the IRS, including “the preparation and filing of necessary documents.” 31 C.F.R. §§10.2(a)and 10.3(b). ERISA also expressly requires participation of CPAs or actuaries in certain parts of the pension plan process. 29 U.S.C. §1023. The court acknowledged that federal agencies have the authority to permit nonlawyers to practice before them, and the court is bound under the supremacy clause of U.S. Const., Art. VI, clause 2, to respect that grant of authority. In this connection, the court recognized that “we cannot prohibit authorized professionals from preparing and presenting the necessary documents to federal agencies before which they are permitted to practice.” Pension Plan, 571 So. 2d at 433.
Second, the court was persuaded by a ruling of the New Jersey Supreme Court that: “In cases involving an overlap of professional disciplines we must try to avoid arbitrary classifications and focus instead on the public’s realistic need for protection and regulation.” Pension Plan, 571 So. 2d at 433, quoting Application of N.J. Society of Certified Public Accountants, 102 N.J. 231, 237, 507 A.2d 711, 714 (1986).
This was the first time in which the court expressly abandoned its single set of UPL rules for all nonlawyers, regardless of their education and training. The court distinguished its prior opinion in The Florida Bar v. Turner, 355 So. 2d 766 (Fla. 1978), which had specifically held that an accountant may not prepare pension plan documents. The court noted that the Turner decision “was based solely on a stipulated record and upon facts which occurred prior to the federal government’s entry into the field of pension planning.” Id.
Two years later the Florida Supreme Court was faced with a seemingly similar question in its Living Trusts opinion. Nevertheless, the court came to the opposite conclusion, and prohibited nonlawyers, including life insurance agents, from active participation in “the assembly, drafting, execution, and funding of a living trust document” since those activities “constitute the practice of law.” Living Trusts, 613 So. 2d at 428.
The Standing Committee on UPL had stipulated with groups of CPAs and bankers that the proposed opinion does not apply to the activities of corporate fiduciaries associated with financial trust departments or the practice of public accountancy. Living Trusts, 613 So. 2d at 427. Consequently, the court was able to avoid the issue of whether CPAs and other professionals whose expertise was recognized in the Pension Plan opinion were authorized, because of their expertise, to practice in this area. In the absence of that stipulation, the court would have been compelled to determine whether the Pension Plan opinion was distinguishable solely on the basis that nonlawyers who draft and sell living trusts are not held accountable, as they are in the pension plan field, to the IRS.
Life insurance agents were not included in the standing committee’s stipulation. They argued to the court that they should be permitted to continue to practice in this field because of their expertise and because they are regulated under F.S. Ch. 626. The court disagreed, explaining that “living trusts are not an insurance product, and thus, not subject to these statutory regulations that govern life insurance agents in their insurance-related activities.” Living Trusts, 613 So. 2d at 428. The court’s ruling seems to be that it is not sufficient to avoid the restrictions on unlicensed practice of law for a professional in another field to point to an existing administrative regulation over that profession. In the case of a professional whose activities in the law related field are actively regulated, however, the court appears to be more receptive to permitting some activities which are otherwise considered the practice of law, so long as those activities are incident to the traditional duties of that profession.
The most recent advisory opinion specifically addressing the activities of nonlawyer professionals is The Florida Bar Re: Advisory Opinion Activities of Community Association Managers, 681 So. 2d 1119 (Fla. 1996) (Community Association Managers). Community Association Managers (CAMs) are licensed through the Department of Business and Professional Regulation, Bureau of Condominiums. Their activities are defined in F.S. Ch. 468, pt. VII. CAMs are governed by the Florida Administrative Code’s Standards of Professional Conduct. In order to be licensed, CAMs must have “general knowledge of condominium law and fulfill continuing education requirements.” Community Association Managers, 681 So. 2d at 1122.
The issue raised by the request for an advisory opinion was the scope of permissible activities in which CAMs may engage when providing community association management services to homeowner associations. The court ruled that CAMs may complete certain categories of forms, but may not prepare other categories of forms which “significantly affect an individual’s legal rights” where “misleading or incorrect information could harm” the public. Community Association Managers, 681 So. 2d at 1123. Moreover, CAMs are prohibited from drafting documents which “affect legal rights” and where the “failure to complete or prepare this form accurately could result in serious legal and financial harm to the property owner.” Id. Further, CAMs are specifically prohibited from giving legal advice to the associations or answering specific legal questions. Community Association Managers, 681 So. 2d at 1123–24.
The court acknowledged the expertise of CAMs, but further recognized that this expertise does not substitute for the education and training of a lawyer:
Although CAMs may be able to draft the documents, they cannot advise the association as to the legal consequences of taking a certain course of action.
We recognize that CAMs are specially trained in the field of community association management, but we agree with the Standing Committee that there are several areas in that field which would require the assistance of an attorney.
Community Association Managers, 681 So. 2d at 1124.
None of the court’s advisory opinions directly address actions of out of state or foreign lawyers. The court’s opinion in The Florida Bar Re: Advisory Opinion on Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178 (Fla. 1997) (“Securities Arbitration”), specifically notes that it does not concern “the propriety of an investor’s representation in securities arbitration by an attorney who is licensed to practice in another jurisdiction, but not in Florida.” Securities Arbitration, 696 So. 2d at 1180 n.1.
In two other instances in which the issue was presented to the Standing Committee on UPL, the matter was resolved through rules adopted by the Supreme Court governing the conduct, rather than the advisory opinion process. The Florida Supreme Court expressed views in both instances on the issue of out of state and foreign lawyer activities in Florida.
Ch. 17 of the Rules Regulating The Florida Bar, the “Authorized House Counsel Rule,” was initially proposed by The Florida Bar Board of Governors in January 1990, after the Standing Committee on UPL held a public hearing, but declined to issue an advisory opinion on the subject. The Florida Supreme Court rejected the Board of Governors’ initial proposed rule, which would have required house counsel to become members of The Florida Bar within a specified period of time. The court explained that this restriction did not “meet the legitimate needs of business in a modern economy.” The court explained that:
We commend The Florida Bar for its effort to safeguard against the unlicensed practice of law. However, this Court is troubled by the concerns raised by the opponents of this proposal. We agree that less burdensome alternatives exist that can provide solutions to this problem.
The Florida Bar Re: Amendment to Rules Regulating The Florida Bar, 593 So. 2d 1035, 1036 (Fla. 1991).
A revised Ch. 17 was later adopted in The Florida Bar Re: Amendments to Rules Regulating The Florida Bar, 635 So. 2d 968, 973–76 (Fla. 1994). The new rule deleted the requirement that house counsel become licensed in Florida, and expressly authorized “an employee of a business organization [to] provide legal services in the state of Florida to the business organization” when the authorized house counsel is a member in good standing of the bar of a state other than Florida. Rule 17-1.3(a). An authorized house counsel may not, however, offer legal services to the public. Rule 17-1.3(c), (d).
The “Foreign Legal Consultancy Rule,” Ch. 16, Rules Regulating The Florida Bar, had a similar origin. After the Standing Committee on UPL held a public hearing on the issue, it referred the matter to the International Law Section of The Florida Bar. That section then proposed a rule permitting foreign lawyers to act as authorized foreign legal consultants in Florida, to give advice and services “regarding the laws of the foreign country in which such person is admitted to practice as an attorney.” Rule 16-1.3(a)(1). Although the rule expressly prohibits a foreign legal consultant from offering legal advice or services on federal or Florida law, the Florida Board of Bar Examiners objected “that the chapter does not sufficiently protect the public.” The court overruled the objection and adopted the rule as providing: “A means of control and protection for the public that does not now exist and, consequently, we find that it is an adequate beginning for regulation of this type of legal activity.” The Florida Bar Re: Amendment to Rules Regulating The Florida Bar, 605 So. 2d 252, 254 (Fla. 1992).
The provisions of Ch. 16 were adopted for a five-year trial period, and were made permanent in the court’s Amendments to the Rules Regulating The Florida Bar—Chapters 6 and 16, 702 So. 2d 1261 (Fla. 1997).
While the Supreme Court has yet to address an advisory opinion on the activities on out-of-state lawyers, it strongly reaffirmed its traditional rule against allowing out-of-state lawyers to practice in Florida in Chandris, S.A. v. Yanakakis, 668 So. 2d 180 (Fla. 1995). In that case, an individual licensed to practice in Massachusetts and that state’s federal courts signed a contingent fee agreement in Florida with an injured seaman, to bring a personal injury case under the Jones Act, 46 U.S.C. §668(a). While the case was later handled by a Florida lawyer, and a second contingent fee agreement was entered into by the client, the Massachusetts lawyer, and the Florida lawyer, the Florida Supreme Court held that the Massachusetts lawyer had engaged in the unauthorized practice of law, and, therefore, both fee agreements were void. The court rejected the argument that because the case had been litigated in federal court, the Massachusetts lawyer had not engaged in UPL, holding that “we find no merit to Yanakakis’ argument that there is a general federal law exception to the Florida’s bar admission requirement.” Yanakakis, 668 So. 2d at 184. And, while the court in Yanakakis reaffirmed its ruling in The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978), that out-of-state lawyers who are members of a multistate law firm may perform certain functions in Florida, the activities performed by the Massachusetts lawyer were not among those permitted in Savitt. Moreover, as the court noted, the Massachusetts lawyer lived in Florida while the lawyer in Savitt was in Florida “on a transitory basis.” Yanakakis, 668 So. 2d at 184–85.
Approved Legal Forms
The Florida Supreme Court has adopted simplified legal forms in several areas for use by members of the public wishing to provide legal services for themselves. The court permits nonlawyers to assist in the completion of these forms, and also permits limited oral communications between nonlawyers and their customers. In its Notice to Owner opinion, the court allowed those same oral communications even though the notice to owner and notice to contractor forms were not adopted as Florida Supreme Court approved forms.
The court has chosen to adopt additional simplified legal forms in one of its advisory opinions. The Florida Bar Re: Advisory Opinion Nonlawyer Preparation of Residential Lease Up to One Year in Duration, 602 So. 2d 914 (Fla 1992) (“Residential Lease”). In that case, the court was asked whether it was the unlicensed practice of law for a real estate licensee or other nonlawyer to draft a residential lease of up to one year in duration. The court received evidence that nonlawyers were already completing residential leases for customers, that there was no standard lease in existence, and that the leases “come from various sources including attorneys or a form company.” Residential Lease, 602 So. 2d at 915.
The court chose to adopt three forms of residential lease, and authorize nonlawyers to prepare those documents and engage in limited oral communications “reasonably necessary to elicit factual information to complete the form.” Residential Lease, 602 So. 2d at 917. The court was encouraged to do so by the observation that “the public may receive more protection if the activity is authorized,” since real estate licensees who injure a client “while performing duties in which the licensee is authorized to engage” are subject to revocation of license and the injured party may seek restitution from the Real Estate Recovery Fund, which is similar to the Bar’s Client Security Fund.” Residential Lease, 602 So. 2d at 916. The court concluded that “certainly the public may be adequately protected by the remedies provided by these agencies”, id., and, therefore, the authorization by the court to prepare these documents would provide greater protection to the public than the current practice.
The court concluded its opinion by reminding the nonlawyer providers that:
The approval of these forms in no way authorizes a nonlawyer to give legal advice, to draft leases or to prepare addenda to an approved lease form. Consequently, if a question arises as to the interpretation of a provision in the lease, the enforcement of the lease, or any other matter requiring legal advice, including the statutory rights or obligations of the landlord or tenant, a nonlawyer should advise the party seeking such advice to consult an attorney.
Residential Lease, 602 So. 2d at 917.
One other advisory opinion dealt with Florida Supreme Court approved forms. The Florida Bar Re: Advisory Opinion Nonlawyer Preparation of and Representation of Landlords in Uncontested Residential Evictions, 605 So. 2d 868 (Fla. 1992) (“Residential Evictions”), subsequent opinion, 627 So. 2d 485 (Fla. 1993). The issue addressed by that opinion was whether it was the unlicensed practice of law for a property manager to draft and file a complaint for eviction, motion for default, final judgment, and writ of possession in uncontested residential evictions. Residential Evictions, 605 So. 2d at 869. The court had approved, the prior year, landlord/tenant forms including a complaint for eviction, final judgment, and writ of possession. The Florida Bar Re: Approval of Forms, 591 So. 2d 594 (Fla. 1991). Thus, under existing law, property managers and others could complete, and engage in limited oral communications with the landlord concerning the completion of, those forms.
The key issue in the case was whether property managers could not only prepare the forms, but also sign the pleadings on behalf of the landlord, and submit the complaint, default, final judgment, and writ of possession on behalf of the landlord without the services of a lawyer. Other than a single narrow exception in Rule 7-050(a)(2) of the Small Claims Rules, no other authorization existed anywhere for nonlawyers to appear in court on behalf of another. The practice was specifically ruled the unlicensed practice of law in the HRS opinion, following a long line of Florida cases.
Nevertheless, the court’s Residential Evictions opinion authorized property managers to engage in these activities. The court explained its rationale as follows: 1) “the property manager . . . is the most involved and familiar with the rental property”; 2) “an uncontested residential eviction for nonpayment of rent is a rather perfunctory process in which abuses would seem unlikely”; and 3) “there has been no showing that the public is being or will be harmed by property managers handling uncontested residential evictions.” Residential Evictions, 605 So. 2d at 871.
The court made its decision “subject to reconsideration one year from the date of this opinion” and warned that: “This authorization does not extend to nonlawyers other than property managers and is given with the understanding that evictions will be handled incidental to the management of the real property.” Id.
The court further noted that property managers who are not lawyers “may not give legal advice in connection with eviction proceedings.” Id.
A year later, in its subsequent opinion, the court reaffirmed its ruling. The court defined a “property manager” as “one who is responsible for the day-to-day management of the residential rental property.” Residential Evictions, 627 So. 2d at 487. The opinion requires written authorization by the landlord for a property manager to engage in this activity. Further, the court observed that when an eviction becomes contested (when a hearing is required), the authorization for property managers to handle the matter ceases. Residential Evictions, 627 So. 2d at 487.
In 1991, the Florida Supreme Court adopted an extensive set of simplified family law forms designed to be used by pro se litigants. These forms were approved in order to encourage greater access to the courts. In Re Rules Regulating The Florida Bar Approval of Forms, 581 So. 2d 902 (Fla. 1991). Currently the Rules of Court book contains more than 500 pages of forms with instructions for their use. See 1998 Florida Rules of Court 743–1252 (West Group 1998).
The promulgation of these simplified family law forms have led people seeking divorces and other relief to go to court without legal representation. Noting that approximately 65 percent of family law case filings are by self-represented litigants, the Family Law Steering Committee petitioned the Florida Supreme Court in June 1998 to adopt a proposed Family Law Rule of Procedure to authorize the establishment of circuit court sponsored self-help programs, which would assist these pro se litigants. The rule was proposed to address the problem that the courts have been inundated with pro se divorce cases. Pro se participants have caused delay and confusion through ignorance of proper procedures, and by making mistakes in the papers they submit to the courts.
Encouraged by the Supreme Court’s relaxation of the Brumbaugh rule in its 10 years of advisory opinions, the Family Law Steering Committee asked the court to allow nonlawyer self-help personnel employed by the courts to engage in oral communications with customers concerning both Suprene Court approved forms and forms approved by the chief judge of a circuit. While the steering committee’s proposal would prohibit the self-help personnel from providing legal advice to self-represented litigants, it would permit them to provide a wide variety of advice and services, including: 1) definitions of legal terminology “from widely accepted legal dictionaries or other dictionaries”; 2) “citations of statutes and rules”; 3) “docketed case information”; 4) “general information about court process, practice, and procedure”; 5) “information from local rules or administrative orders”; 6) “general information about local court operations”; and 7) “facilitate the setting of hearings.”
The petition elicited comments, including fears expressed that the proposal would foster the unlicensed practice of law, which would harm, rather than help, unrepresented litigants. In its opinion adopting, with modifications, the steering committee’s proposal, the Supreme Court addressed this issue in ways reminiscent of its approach in prior UPL advisory opinions. In Re: Amendments to the Florida Family Law Rules of Procedure (Self Help), __ So. 2d __, 23 Fla. L. Weekly S612 (Fla. Dec. 3, 1998).
As it had in its Notice to Owner advisory opinion, the court relaxed its rule that nonlawyers may only engage in oral communications with customers concerning Supreme Court approved forms. Rule 12.750, Family Law Rule of Procedure, will now permit nonlawyers employed by family law self-help programs to have those same communications to assist in filling out family law forms approved by the chief judge of a circuit that are “not inconsistent” with Supreme Court approved forms. The court explained the need for this change:
[L]ocal provisions regarding family law cases vary greatly from circuit to circuit [so] that local circuits should be able to use forms that are approved by the chief judge of the circuit and that are in substantial compliance with and not inconsistent with the Supreme Court approved forms.
What plainly convinced the court to grant this group of nonlawyers unprecedented latitude to advise customers was the fact that the self-help programs are nonprofit, court-sanctioned programs that will be operated under the supervision of attorneys. In rejecting the suggestion that all self-help programs, not merely those operated “under the auspices of the court,” should be granted the same latitude, the court stated that:
[I]f we were to delete that language, we would be approving specific activities for nonlawyers that are not otherwise allowed in programs not operating within court-sanctioned programs.
Thus, as it had in its Pension Plan opinion, the court recognized the expertise of a group of nonlawyers, and the protection afforded to the public from competently run programs.
Justice Wells, in his dissent, candidly pointed out that the use of family law forms had created great difficulties for the courts, and expressed skepticism that the proposed solution would improve the situation:
[F]ostering more pro se representation in family court actions does not serve the best interests of either the families of this state or the courts.
Nevertheless, having created the problem by adopting the simplified forms in the first place, a majority of the court plainly felt that the self-help programs were the best way to preserve open access to the courts for pro se litigants while addressing the problems created by the forms.
The rationale for adopting Family Law Rule of Procedure 12.750 was reminiscent of statements made in several UPL advisory opinions. The court was convinced that the public is adequately protected by well trained, supervised, and monitored personnel, who will help, rather than hinder, the delivery of legal services. Thus, the court has now adopted an innovative program to assist self representation and to save the family law divisions of the circuit courts from drowning under the weight of an ever increasing number of pro se filings. If successful, this program may serve as a model for other court-sponsored access initiatives.
On the same day the Supreme Court issued its opinion authorizing the self-help programs, it also issued In re: Amendments to the Florida Family Law Rules of Procedure, __So. 2d __, 23 Fla. L. Weekly S615 (Fla. Dec. 3, 1998), delineating the role of the Family Court Steering Committee, designating that committee to compile the existing Supreme Court approved family law forms and to become responsible for updating those forms. The Family Law Steering Committee is authorized to request approval of changes in the forms whenever necessary, rather than following the more complex process required to amend the existing rules of procedure. The opinion underscores the court’s continued confidence in the Supreme Court approved forms to be utilized by pro se litigants.
The Future of
In its advisory opinions, the court has not added any bright lines to the definition of the unlicensed practice of law. In fact, the court has blurred two of the only existing bright lines. Previously, it was thought to be clear that only lawyers could appear in court on behalf of others. Now, property managers may do so in uncontested residential evictions. Likewise, it was understood that nonlawyers could engage in oral communications with customers only concerning the preparation of Florida Supreme Court approved forms. Now, nonlawyers may also do so in filling out notice to owner and notice to contractor forms, and court-sponsored self-help personnel may do so in filling out circuit court approved family law forms.
These exceptions to existing UPL rules flow from the court’s conclusion that in these areas the public is knowledgeable and sufficiently protected. Thus, the court’s rulings follow from its statement in The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980), that the “single most important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.”
In its Securities Arbitration opinion, by contrast, it was the absence of regulation of nonlawyers’ activities which was repeatedly emphasized by the court as the basis on which to enjoin nonlawyers from representing investors. Securities Arbitration, 696 So. 2d at 1180–83. Whenever the court has concluded that activities of nonlawyers have created harm to the public, the court has enjoined them. See HRS, Living Trusts, and Securities Arbitration opinions. Thus, the advisory opinion process allows the court to be less concerned with bright line rules and more concerned with reexamining existing rules so as to effectuate the court’s overriding requirement of protecting the public.
The role of professionals in law related fields and the role of out-of-state lawyers are issues which the court is likely to revisit in upcoming advisory opinions. The Pension Plan opinion declined to issue any advisory opinion based on the absence of a sufficient record. Nevertheless, the opinion was viewed as authorization for nonlawyer professionals to continue and expand their activities in the pension plan field. Consequently, the Pension Plan ruling will not be the court’s last word on the subject.
Pension plan preparation and administration are one of many law related fields which CPAs and others have attempted to occupy in the past several years. In response, lawyers have sought the opportunity to expand into “ancillary” businesses in order to compete with accountants. This issue has created enormous controversy both within the ABA and The Florida Bar. See, e.g., Rule 5.7, ABA Model Rules of Professional Conduct. In addressing the role of nonlawyer professionals, the court will influence the outcome of the current debate over lawyer involvement in ancillary businesses.
As to out-of-state lawyers, that issue is likely to arise in the context of federal litigation, arbitration, and transactional matters. An out-of-state lawyer may seek to open an office in Florida to handle arbitration or federal litigation for clients or practice only the law of the jurisdiction in which that individual is licensed. Under the Savitt and Yanakakis decisions, these activities would appear to be prohibited where an out-of-state lawyer resides in Florida.
The advisory opinions issued by the court suggest that the out-of-state lawyer issue is more complex than earlier believed. Neither Yanakakis nor Savitt were advisory opinions. If, in the future, an out-of-state lawyer seeks an advisory opinion before engaging in the activities, the court would then be faced with difficult questions: First, if out-of-state lawyers are adequately regulated by the jurisdictions in which they are admitted, how can the Florida Supreme Court continue to prohibit their activities? Second, and viewed another way, can the courts of the other 49 states prohibit the 10,000 out-of-state lawyers licensed in Florida but living elsewhere from giving advice outside of Florida to clients on Florida law issues? Perhaps these questions will be answered in the next 10 years of UPL advisory opinions. q
Robert M. Sondak is a commercial litigation attorney, Of Counsel to Cohen Chase & Hoffman, P.A. in Miami. He is a 1968 graduate of Yale College and a 1972 graduate of Columbia University Law School. Mr. Sondak represented The Florida Bar in the HRS and Pension Plan cases described in this article. He chaired The Florida Bar Standing Committee on Unlicensed Practice of Law from 1986–88, and has served on several Bar and Supreme Court committees dealing with access to courts and the unlicensed practice of law.